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Potholes on the Road to Compliance With the New Definition of an Internet Applicant
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Over the last several months, federal contractors have worked diligently to understand the Office of Federal Contract Compliance Programs’ final rule on the definition of an Internet applicant and to implement changes to their recruiting and hiring practices. They also have struggled to understand how their recruiting technology can comply with the recordkeeping and reporting requirements of the final rule. The relatively easy part has been identifying when EEO (i.e., race and gender) information should be solicited. EEO information must be solicited when a job seeker meets the four criteria of an internet applicant, as follows:
The hard part has been understanding the final rule’s recordkeeping requirements and implementing the technology required to support these requirements, as follows:
For internal databases (those owned or controlled by the employer), employers must maintain the resumes and candidate information on all job seekers who have been considered for a particular position, the date that the resume/candidate information was added to the internal database, search dates, search criteria, and the position for which each search was conducted. For external databases (those not owned or controlled by an employer), employers must maintain resumes and candidate information on all job seekers who meet basic qualifications, search dates, search criteria, and the position for which each search was conducted.
As employers have examined their recruiting and hiring practices and technology, they have become painfully aware of the difficulties in interpreting the final rule and implementing policies and procedures that comply with the regulations. Although new questions and concerns arise every day, some come up again and again, such as questions related to consideration and basic qualifications.
When has an employer “considered” an expression of interest?
For internal databases, the final rule requires employers to maintain records on all job seekers “considered” for a particular position. Some parties claim that an employer must visually or manually examine an expression of interest (resume or cover letter, for example) to meet the definition of consideration. Although manual inspection of an expression of interest represents one method of consideration, it is not the only method. The final rule states that:
“Considers the individual for employment in a particular position,” means that the contractor assesses the substantive information provided in the expression of interest with respect to any qualifications involved with a particular position.
Certainly, an automated review, such as a search, can be used to identify candidates whose expressions of interest contain key words related to position qualifications. If a recruiter trying to fill a Java programmer position types “Java” as a search term and searches a candidate database of resumes, the expression of interest has been evaluated against the position requirements. The final rule provides a detailed discussion of the specific recordkeeping requirements for searching internal and external candidate databases. If an automated search is not a method of considering candidates, it seems unlikely that the OFCCP would have covered the issue in such detail in the final rule.
Further, when asked about this issue, the OFCCP responded that the substantive assessment of expressions of interest could be made by an automated function performed electronically — in other words, a search. A search, however, may or may not identify job seekers who meet basic qualifications. The effectiveness of the search for this purpose depends on the search criteria and the terms found in the resumes of those who meet basic qualifications. Do the resumes of job seekers who meet basic qualifications contain the words or terms used in the search? A manual review of the search results may identify any number of job seekers who do not meet the basic qualifications of a position. Although these job seekers have been considered, requiring an employer to save their records, they would not be applicants. Employers are not required to solicit EEO information from them.
What should be considered?
For the purpose of identifying applicants from all job seekers, only basic qualifications should be used in the early stages of consideration. Basic qualifications should be objective, non-comparative, and job-related. Most often, basic qualifications will address minimum education and experience and required training or certifications. Basic qualifications may also include eligibility to work in the United States, required security clearance, or similar work requirements. Employers, however, want to hire the most qualified, not the basically qualified. The final rule does not preclude employers from using additional methods to evaluate applicants and to identify the most qualified applicants. The consideration of basic qualifications may be used to differentiate job seekers from applicants, those whose EEO information must be solicited. Once an individual becomes an applicant, the employer may use additional assessments that go beyond basic qualifications, such as preferred qualifications or additional knowledge, skills, abilities, and other characteristics, to narrow the applicant pool to the individual who will be offered the position.
How should basic qualifications be considered?
In general, there are three types of expressions of interest that contain information on the basic qualifications of a candidate, and there are two methods that are used to compare the content of these expressions of interest to the requirements of a position.
The three types of expressions of interest that contain information about basic qualifications are a resume, a completed online application form, and a completed prescreening questionnaire that may be part of the initial online application. The two methods used to compare these expressions of interest to the job requirements are manual or visual inspection or through an automated review such as a search or automatic questionnaire scoring. The primary flaw with a search is that the effectiveness of the search depends on both the exact terms used in the search and the likelihood that a candidate who meets basic qualifications will use those exact terms in his or her resume or application form. Technology that parses resumes or application forms and places certain information such as education and experience into specific searchable fields in a candidate database may or may not increase the effectiveness of the search.
Ultimately, the most efficient and effective way to evaluate basic qualifications is through an online application with a prescreening questionnaire. This combination gives the recruiter control over the exact questions and response options. In addition, since the final rule provides that a candidate whose work preferences do not match the position requirements may be designated as not interested in the position and, therefore, not an applicant, a questionnaire can also be used to ask about a candidate’s work preferences.
Related Issues
Do I have to save search information if I am not trying to fill a particular position?
Searches may be useful for purposes other than filling a particular position. If a search is conducted for a purpose other than filling a particular position, the recruiter is not obligated to save the search information. For one, training on search technology will require recruiters and other users to create and run searches on either demo or live candidate databases. The purpose of these searches is to train recruiters — not to fill a particular position. Another example: The new regulations may encourage employers to assign certain recruiters to create the basic qualification searches for positions. In this case, these recruiters will run test searches to identify the best search terms associated with certain basic qualifications. The purpose of these searches is to identify the best search terms for other recruiters to use to fill a particular position. Finally, many recruiters are responsible for building and maintaining a talent pipeline of individuals with frequently needed skills and expertise. For example, a pharmaceuticals company may have a continuous need for individuals with pharmaceutical research experience. Recruiters may engage in search activities to identify individuals with these skills, even without a specific position in mind. If the activities are focused on building a talent pipeline and not filling a specific position, the search activity does not need to be logged. The caveat here is that the recruiter should not be trying to fill a current opening or one that will open in the near future when conducting these search activities.
Am I now required to only use searches or questionnaires to evaluate basic qualifications?
No. Although the first step in the recruiting and hiring process may be the use of a search tool or questionnaire to identify candidates who meet the basic qualifications of a position, you may use these tools later in the hiring process to identify applicants who are more qualified than others. The final rule focuses on how an employer identifies the applicant pool, not how an employer identifies who will be hired from the applicant pool. Once you have identified the applicant pool (those who meet the four criteria of the definition of an Internet applicant), the rest of the hiring process may be the same or similar to the process in place prior to the rule. That is, you want to identify the best qualified applicant for the position. You may accomplish this using additional searches, questionnaires, employment tests, or interviews, for example.
Can I use conceptual search?
Conceptual search purports to address many of the flaws with keyword searching. As mentioned above, the effectiveness of a search depends on the search criteria and the likelihood that a job seeker who meets basic qualifications will use those terms in his or her resume (or other searched text fields). If the recruiter lacks knowledge of the job and job-specific terminology or chooses to use “bachelor’s” instead of “BS” or “B.S.,” the search may not be effective in identifying all job seekers who meet certain qualifications. With conceptual search, a recruiter can enter a search term, string of terms, a resume, or other document as the search criteria. The search engine will analyze the information and identify job seekers whose resumes or other materials contain similar information. The use of conceptual search in compliance with the OFCCP’s final rule depends on the user’s ability to identify the search criteria actually used in the conceptual search. Since most conceptual search tools do not provide the user with such criteria, such as the actual search terms used, contractors may want to avoid the use of conceptual search.
Is prescreening an employment test?
A pre-screen may or may not be an employment test. The answer depends on the specific items or questions included in the pre-screen. If the items focus on objective, non-comparative, job-related qualifications, the pre-screen is a method to collect information on basic qualifications, not an employment test. If the items are scored for ranking purposes (i.e., comparative), the pre-screen is an employment test. The issues addressed here represent only a few of the questions and concerns raised so far by the OFCCP’s final rule on the definition of an Internet applicant.
As we implement policies and procedures and technology to comply with the regulations, we will undoubtedly identify others.
Note: This article is provided for informational purposes only and is not intended to offer specific legal advice. You should consult your legal counsel regarding any threatened or pending litigation.